Legal battle over Clean Power Plan starts, early edge to EPA

October 19th, 2016 by Dakota Software Staff Industry News

The Clean Power Plan is not yet finalized, in large part due to the legal action taken by a group of states that oppose the environmental regulations it contains, along with a host of other concerns. With 27 states and a number of businesses involved in the energy industry opposed to various components of the plan - including the state-specific carbon level rules that affect power plants and the methodology behind setting those numbers - it was likely only a matter of time before a legal challenge was issued.

The future of the plan is how in the hands of the U.S. Court of Appeals for the District of Columbia Circuit, which Environment & Energy Publishing said used the uncommon tactic of having all 10 of its active judges preside over the case. With the battle just beginning, it's too early to say whether the states or the EPA will come out on top. However, Scientific American said many on both sides of the issue believed the early advantage went to the federal environmental regulator. Additionally, ClearView Energy Partners, a consulting group closely following the case, provided an early projection that the case would go 6-4 in favor of the EPA. The firm thinks a split following party lines among the judges could be the final result.

Questions of power and boundaries
One of the main arguments driving the lawsuit is questioning of the EPA's role and limits in creating and enforcing environmental regulations. The nature of the plan, which applies on a state level and involves individualized targets that vary from area to area, is in a similar predicament. The EPA and its supporters generally believe the organization's reach extends to this level of rule-setting and enforcement.

Many opponents of the plan believe the federal government ultimately has a right to restrict emissions and take steps to protect the environment, but that such broad, high-level and sweeping regulations should be set through the legislature instead of an agency. That argument has some strong backing, as its easy to interpret the power of the legislative branch provided in the constitution being the main, if not only, setter of laws. To that end, Scientific American highlighted a statement by Circuit Judge Brett Kavanaugh, who said preventing the emission of greenhouse gases is a laudable goal, but noted global warming doesn't give the executive branch carte blanche to create rules and regulations.

Opponents also pointed to a previous U.S. Supreme Court ruling, the case of Utility Air Regulatory Group v. EPA, as highlighted by E&E Publishing. Justice Antonin Scalia made a statement at that time noting his displeasure with the EPA's actions related to that suit, which revolved around a use extending the reach of the Clean Air Act that was eventually found to be improper by the high court.

"When an agency claims to discover in a long-extant statute an unheralded power to regulate 'a significant portion of the American economy,' ... we typically greet its announcement with a measure of skepticism," Scalia wrote, according to E&E Publishing. "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'"

The EPA lost that legal battle and, as a result, stopped requiring some businesses to obtain greenhouse gas emission permits to continue operations.

The number of different considerations and sheer complexity of the case mean there's no clear resolution arriving any time soon, and Scientific American said a final decision may not be reached until 2018. Until then, businesses impacted by these regulations have to stay abreast of the latest developments in the case.